2,350,000 SHARES
AMERITRADE HOLDING CORPORATION
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
______________, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue
New York, N.Y. 10010
Dear Sirs:
1. INTRODUCTORY. AmeriTrade Holding Corporation, a Delaware
corporation ("COMPANY"), proposes to issue and sell shares of its Class A
Common Stock, par value $.01 per share ("SECURITIES"), and the stockholders
listed in Schedule A hereto ("SELLING STOCKHOLDERS") propose severally to
sell an aggregate of 2,350,000 outstanding shares of the Securities (such
2,350,000 shares of Securities being hereinafter referred to as the "FIRM
SECURITIES"). J. Xxx Xxxxxxx and Xxxxxxx X. Xxxxxxxx (collectively, the
"Controlling Selling Stockholders") also propose to issue and sell to the
Underwriters, at the option of the Underwriters, an aggregate of not more
than 352,500 additional shares of Securities as set forth below (such 352,500
additional shares being hereinafter referred to as the "OPTIONAL
SECURITIES"). The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES". The Company and the Selling
Stockholders hereby agree with the several Underwriters named in Schedule B
hereto ("UNDERWRITERS") as follows:
-----------------------
* Plus an option to acquire from the Company up to 352,500
additional shares to cover over-allotments.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND CONTROLLING
SELLING STOCKHOLDERS. (a) The Company and the Controlling Selling
Stockholders represent and warrant to, and agrees with, the several
Underwriters that:
(i) A registration statement (No. 333-17495) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and either (A) has been
declared effective under the Securities Act of 1933, as amended ("ACT"),
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement (the
"INITIAL REGISTRATION STATEMENT") has been declared effective, either (A)
an additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with the
Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so
filed, has become effective upon filing pursuant to such Rule and the
Offered Securities shall have been duly registered under the Act pursuant
to the initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration statement
has been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the Act
or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and delivery of
this Agreement, the additional registration statement (A) if the Company
has advised the Representatives that it does not propose to amend such
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any)
filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing pursuant to
Rule 462(c), or (B) if the Company has advised the Representatives that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as the
case may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the Representatives
that it proposes to file one, "EFFECTIVE TIME" with respect
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to such additional registration statement means the date and time as of
which such registration statement is filed and becomes effective pursuant
to Rule 462(b). "EFFECTIVE DATE" with respect to the initial
registration statement or the additional registration statement (if any)
means the date of the Effective Time thereof. The initial registration
statement, as amended at its Effective Time, including all information
contained in the additional registration statement (if any) and deemed to
be a part of the initial registration statement as of the Effective Time
of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to is the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule 430A(b),
is hereinafter referred to as the "ADDITIONAL REGISTRATION STATEMENT".
The Initial Registration Statement and the Additional Registration
Statement are hereinafter referred to collectively as the "REGISTRATION
STATEMENTS" and individually as a "REGISTRATION STATEMENT". The form of
prospectus relating to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)")
under the Act or (if no such filing is required) as included in a
Registration Statement, is hereinafter referred to as the "PROSPECTUS".
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act. The Commission has not issued any order
preventing or suspending the use of any preliminary prospectus, and each
preliminary prospectus has conformed in all material respects with the
requirements of the Act and the Rules and Regulations (as hereinafter
defined) and, as of its date, has not included any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission ("RULES AND REGULATIONS")
and did not include any untrue statement of material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed or will conform in all material respects to the requirements of
the Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or will
not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (C) on the
date of this
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Agreement, the Initial Registration Statement and, if the Effective Time
of the Additional Registration Statement (if any) is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Initial Registration Statement or the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement, on the Effective Date of the Initial Registration
Statement the Initial Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and the
Rules and Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(iii).
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or to be in good standing would not have a
material adverse effect on the condition (financial or other), business or
results of operations of the Company and its subsidiaries taken as a whole,
and no proceeding of which the Company has knowledge has been instituted in
any such jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or qualification.
(iv) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction
of its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its
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business requires such qualification, except where the failure to be so
qualified or to be in good standing would not have a material adverse
effect on the condition (financial or other), business or results of
operations of the Company and its subsidiaries taken as a whole, and no
proceeding of which the Company has knowledge has been instituted in any
such jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or qualification; all
of the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid and
nonassessable; and the Company owns directly or indirectly 100% of the
issued and outstanding capital stock of each subsidiary free from liens,
encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered Securities
will have been, validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with respect to the
Securities.
(vi) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment.
(vii) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the
Act.
(viii) The Company has filed a registration statement pursuant to
Section 12(g) of Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") to register the Class A Common Stock of the Company thereunder. The
Offered Securities have been approved for listing on The Nasdaq Stock
Market's National Market, subject to notice of issuance, under the symbol
"AMTD".
(ix) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required as of the
applicable Closing Date (as hereinafter defined) for the consummation of
the transactions contemplated by this
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Agreement in connection with the issuance and sale of the Offered
Securities by the Company, except such as have been obtained and made
under the Act and under applicable state securities laws.
(x) The execution, delivery and performance of this Agreement, and the
issuance and sale of the Offered Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the Company or any subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any such subsidiary is
a party or by which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is subject, or
the charter or by-laws of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities to be delivered by the Company as contemplated by this
Agreement.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
(xiii) The Company and its subsidiaries possess certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business or results of operations of the
Company and its subsidiaries taken as a whole.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the condition (financial or other),
business or results of operations of the Company and its subsidiaries taken
as a whole.
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(xv) The Company and its subsidiaries own and possess all right title
and interest in and to, or have duly licensed or otherwise lawfully
acquired from third parties, all trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business or results
of operations of the Company and its subsidiaries taken as a whole.
(xvi) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a material adverse effect on
the condition (financial or other), business or results of operations of
the Company and its subsidiaries taken as a whole; and the Company is not
aware of any pending investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the condition (financial or other), business or
results of operations of the of the Company and its subsidiaries taken
as a whole, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement, or which
are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(xviii) The accountants who have expressed their opinions with
respect to certain of the financial statements and schedules included
in the Registration Statement are independent accountants as required
by the Act.
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(xix) The financial statements included in each Registration Statement
and the Prospectus present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods shown,
and such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a
consistent basis; and the schedules (if any) included in each Registration
Statement present fairly the information required to be stated therein; the
financial information set forth in the Prospectus under "SUMMARY
CONSOLIDATED FINANCIAL AND OPERATING DATA" and "SELECTED CONSOLIDATED
FINANCIAL AND OPERATING DATA" presents fairly in all material respects, on
the basis stated in each Registration Statement and the Prospectus, the
information set forth therein.
(xx) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business or results of operations of the Company and its subsidiaries taken
as a whole, and, except as disclosed in or contemplated by the Prospectus,
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(xxi) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "INVESTMENT COMPANY" as
defined in the Investment Company Act of 1940.
(xxii) Neither the Company nor any subsidiary is in violation of
its charter or in default under any consent decree, or in default with
respect to any material provision of any lease, loan agreement,
franchise, license, permit or other contract obligation to which it is
a party; and, to the Company's knowledge, there does not exist any
state of facts which constitutes an event of default as defined in
such documents or which, with notice or lapse of time or both, would
constitute such an event of default, in each case, except for defaults
which neither singly nor in the aggregate are material to the Company
and its subsidiaries taken as a whole.
(xxiii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Offered Securities.
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(xxiv) The conduct of the business of the Company and each of its
subsidiaries is in compliance in all respects with applicable federal,
state, local and foreign laws and regulations, except where the
failure to be in compliance would not have a material adverse effect
upon the condition (financial or otherwise), business or results of
operations of the Company and its subsidiaries taken as a whole.
(xxv) All offers and sales of the Company's capital stock prior
to the date hereof were at all relevant times exempt from the
registration requirements of the Act and were duly registered with or
the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky laws.
(xxvi)The Company and each of its subsidiaries maintains
reasonably adequate insurance.
(xxvii)There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in,
the Company or any subsidiary thereof except as otherwise disclosed in
the Prospectus.
(xxviii) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(xxix) The Company has filed all necessary federal and state
income and franchise tax returns and has paid all taxes shown as due
thereon, and there is no tax deficiency that has been, or to the
knowledge of the Company might be, asserted against the Company or any
of its properties or assets that would or could be expected to have a
material adverse affect upon the condition (financial or otherwise),
business or results of operations of the Company and its subsidiaries
taken as a whole, other than any such taxes as are being contested in
good faith and properly reserved for in accordance with generally
accepted accounting principles.
(b) Each Selling Stockholder represents and warrants to, and agrees with,
the Underwriters that:
(i) Such Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered Securities
to be
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delivered by such Selling Stockholder on such Closing Date and has and on
each Closing Date will have full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date.
(ii) This Agreement, the Custody Agreement (the "CUSTODY AGREEMENT")
and the Power of Attorney (the "POWER OF ATTORNEY") executed and delivered
by such Selling Stockholder have been duly authorized, executed and
delivered by such Selling Stockholder.
(iii) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation by such Selling Stockholder of the transactions contemplated
by this Agreement, the Custody Agreement and the Power of Attorney in
connection with the issuance and sale of the Offered Securities by such
Selling Stockholder, except such as have been obtained and made under the
Act and such as may be required under state securities laws.
(iv) The execution, delivery and performance of this Agreement, the
Custody Agreement and the Power of Attorney executed and delivered by such
Selling Stockholder and the issuance and sale of the Offered Securities
will not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over such Selling Stockholder or any of such Selling
Stockholder's properties, or any agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder is
bound or to which any of the properties of such Selling Stockholder is
subject, or the charter, by-laws or other organizational documents of any
Selling Stockholder which is not a natural person, and such Selling
Stockholder has full power and authority to authorize and sell the Offered
Securities as contemplated by this Agreement.
(v) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the Rules and Regulations and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed, or will conform,
in all material respects to the
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requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact and
did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement (if any) is prior to the execution and delivery of
this Agreement, the Additional Registration Statement each conforms, and
at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Initial
Registration Statement or the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements of
the Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If
the Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement, on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. With respect to
the Selling Stockholders (other than the Controlling Selling
Stockholders), the two preceding sentences only apply to statements in or
omissions from a Registration Statement or the Prospectus based upon
written information furnished to the Company by such Selling Stockholder.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company and each Selling Stockholder, at a purchase price of $ _________ per
share, that number of Firm Securities (rounded up or down, as determined by
Credit Suisse First Boston Corporation ("CSFB") in its discretion, in order
to avoid fractions) obtained by multiplying _______________ Firm Securities
in the case of the Company and the number of Firm Securities set forth
opposite the name of such Selling Stockholder in Schedule A hereto, in the
case of a Selling Stockholder, in each case by a fraction the numerator of
which is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is the total
number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with The Bank of New
York, as custodian ("CUSTODIAN"). Each
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Selling Stockholder agrees that the shares represented by the certificates
held in custody for the Selling Stockholders under such Custody Agreements
are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death
of any individual Selling Stockholder or the occurrence of any other event,
or in the case of a trust, by the death of any trustee or trustees or the
termination of such trust. If any individual Selling Stockholder or any such
trustee or trustees should die, or if any other such event should occur, or
if any of such trusts should terminate, before the delivery of the Offered
Securities hereunder, certificates for such Offered Securities shall be
delivered by the Custodian in accordance with the terms and conditions of
this Agreement as if such death or other event or termination had not
occurred, regardless of whether or not the Custodian shall have received
notice of such death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters at the office of Xxxxx,
Xxxxx & Xxxxx, against payment of the purchase price in funds available on
the same day by wire transfer to the account of the Company and the Custodian
at a bank designated by the Company and the Custodian, respectively, and in
each case reasonably acceptable to CSFB or by certified or cashier's bank
check (in Federal Reserve funds) drawn to the order of the Company and the
Custodian, as applicable, at the office of Xxxxx, Xxxxx & Xxxxx at 10:00 a.m.
New York time, on the fourth business day, if permitted under Rule 15c6-1
under the Exchange Act (or the third business day if required under Rule
15c6-1 under the Exchange Act or unless postponed in accordance with the
provisions of Section 9 hereof) following the date the Registration Statement
is declared effective by the Commission (or, if the Company has elected to
rely on Rule 430A, the fourth business day, if permitted under Rule 15c6-1
under the Exchange Act (or the third business day if required under Rule
15c6-1 under the Exchange Act) after execution of this Agreement) or at such
other time not later than seven full business days thereafter as CSFB and the
Company determine, such time being herein referred to as the "FIRST CLOSING
DATE". The certificates for the Firm Securities so to be delivered will be
in definitive form, in such denominations and registered in such names as
CSFB requests and will be made available for checking and packaging at the
office of CSFB at least 24 hours prior to the First Closing Date; provided
that CSFB shall use its reasonable best efforts to provide such denominations
and names at least 48 hours prior to the First Closing Date.
In addition, upon written notice from CSFB given to the Company and the
attorneys-in-fact set forth in the Power of Attorney of the Selling
Stockholders (the "Attorneys-in-Fact") from time to time not more than 30
days subsequent to the date of the Prospectus, the Underwriters may purchase
all or less than all of the Optional Securities at the purchase price per
Security to be paid for the Firm Securities. The Controlling Selling
Stockholders agree to sell to the Underwriters the number of Optional
Securities specified in such notice and the
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Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased from the Controlling
Selling Stockholders for the account of each Underwriter in the same
proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by CSFB to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been,
or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may be exercised from time to time
and to the extent not previously exercised may be surrendered and terminated
at any time upon notice by CSFB to the Attorneys-in-Fact.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the
First Closing Date (the First Closing Date and each Optional Closing Date, if
any, being sometimes referred to as a "CLOSING DATE"), shall be determined by
CSFB but shall be not later than five full business days after written notice
of election to purchase Optional Securities is given. The manner of payment
for and delivery of the Optional Securities shall be the same as the Firm
Securities as specified above. The certificates for the Optional Securities
being purchased on each Optional Closing Date will be in definitive form, in
such denominations and registered in such names as CSFB requests upon
reasonable notice prior to such Optional Closing Date and will be made
available for checking and packaging at the above office of CSFB at least 24
hours in advance of such Optional Closing Date; provided that CSFB shall use
its reasonable best efforts to provide such denominations and names at least
48 hours prior to the Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public
as set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. The
Company and the Selling Stockholders agree with the several Underwriters that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to, and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFB (which
consent shall not be unreasonably withheld), subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second business day following
the execution and delivery of this Agreement or (B) the fifteenth business
day after the Effective Date of the Initial Registration Statement.
The Company will advise CSFB promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration Statement
is prior to the
- 13 -
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with
the Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement, if possible,
or, if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFB.
(ii) The Company will advise CSFB promptly of any proposal to amend or
supplement the initial or any additional registration statement as filed or
the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFB's consent (which
consent shall not be unreasonably withheld), and the Company will also
advise CSFB promptly of the effectiveness of each Registration Statement
(if its Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of any
stop order proceedings in respect of a Registration Statement and will use
its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFB of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFB's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7.
(iv) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
security holders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11 (a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day
- 14 -
after the end of the fourth fiscal quarter following the fiscal quarter
that includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year, "AVAILABILITY
DATE" means the 90th day after the end of such fourth fiscal quarter.
(v) The Company will furnish to the Representatives copies of each
Registration Statement (three of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as delivery of
a prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFB reasonably requests. The Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the second
business day following the later of the execution and delivery of this
Agreement or the Effective Time of the Initial Registration Statement. All
other such documents shall be so furnished as soon as available. The
Company and the Selling Stockholders will pay the expenses of printing and
distributing to the Underwriters all such documents.
(vi) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFB designates and will continue such qualifications in effect so
long as required for the distribution; provided that the Company will
not be required to qualify as a foreign corporation or take any action
that would subject it to general service of process in any
jurisdiction in which it is not currently so qualified or subject.
(vii) During the period of two years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year, and the Company
will furnish to the Representatives (A) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, [and (B)
from time to time, such other information concerning the Company as CSFB
may reasonably request].
(viii)The Company will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse the Underwriters
(if and to the extent incurred by them) for any filing fees and other
expenses (including reasonable fees and disbursements of counsel) incurred
by it in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions as CSFB designates and the printing of
memoranda relating thereto, for the filing fee incident to, the review by
the National Association of Securities Dealers, Inc. of the Offered
Securities, for any
- 15 -
travel expenses of the Company's officers and employees (but not the
Representatives or the Underwriters) in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities
and for expenses incurred in distributing preliminary prospectuses and
the Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(ix) For a period of 180 days after the date of the Prospectus, the
Company will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or exercisable
for any shares of its Securities, or publicly disclose the intention to
make any such offer, sale, pledge, disposal or filing, without the prior
written consent of CSFB, except grants of stock options and awards pursuant
to the terms of a director or employee plan as in effect on the date
hereof, issuances of Securities pursuant to the exercise of such options or
the exercise of any other stock options or awards outstanding on the date
hereof and except for registration statements under the Act relating to a
director or employee plan as in effect on the date hereof.
(x) Neither the Company nor any of its subsidiaries will acquire
any capital stock of the Company prior to the earlier of the Optional
Closing Date or termination or expiration of the related option nor
will the Company declare or pay any dividend or make any other
distribution upon the Class A Common Stock payable to stockholders of
record on a date prior to the earlier of the Optional Closing Date or
termination or expiration of the related option, except in either case
as contemplated by the Prospectus.
(xi) The Company will use the net proceeds received by it from
the sale of the Offered Securities being sold by it in the manner
specified in the Prospectus.
(xii) Each Selling Stockholder agrees to deliver to CSFB, attention:
Transactions Advisory Group on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form W-9
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(xiii) Each Selling Stockholder agrees, for a period of 180 days after
the date of the Prospectus, not to offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or exchangeable or
exercisable for any shares of Securities, or publicly disclose the
intention to make any such offer, sale, pledge or disposal,
- 16 -
without the prior written consent of CSFB, except gifts and pledges of
Securities where the donees or pledgees, as the case may be, agree in
writing to be bound by the terms of an agreement satisfactory to CSFB
containing terms identical to those set forth in this clause (xiv).
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Stockholders
(including the Controlling Selling Stockholders) herein, to the accuracy of
the statements of Company officers made pursuant to certifications made in
accordance with the provisions hereof, to the performance by the Company and
the Selling Stockholders of their obligations hereunder and to the following
additional conditions precedent:
(i) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Deloitte & Touche LLP
confirming that they are independent public accountants within the meaning
of the Act and the applicable published Rules and Regulations thereunder
and stating to the effect that:
(A) in their opinion the financial statements and schedules (if
any) examined by them and included or incorporated by reference in the
Registration Statements comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(B) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited financial
statements included in the Registration Statements;
(C) on the basis of the review referred to in clause (B) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
- 17 -
(1) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally accepted
accounting principles;
(2) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three days prior to the date of this Agreement, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared with
amounts shown on the latest balance sheet included in the
Prospectus; or
(3) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectus, in consolidated total revenues or operating
income in the total or per share amounts of net income,
except in all cases set forth in clauses (2) and (3) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(D) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
- 18 -
For purposes of this subsection, (x) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (y) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution and
delivery, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be filed
or as proposed to be amended by the post-effective amendment to be filed
shortly prior to its Effective Time, and (z) "PROSPECTUS" shall mean the
prospectus included in the Registration Statements.
(ii) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement, if possible, or such later date as shall have been
consented to by CSFB. If the Effective Time of the Additional Registration
Statement (if any) is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than 10:00
P.M., New York time, on the date of this Agreement or, if earlier, the time
the Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by CSFB. If
the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(i) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company, the Selling Stockholders or the
Representatives, shall be contemplated by the Commission.
(iii) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (A) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters including the Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities; (B)
any downgrading in the rating of any debt securities of the Company by any
"NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (C) any suspension or limitation of trading
in securities generally on the
- 19 -
New York Stock Exchange, or any setting of minimum prices for trading on
such exchange or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (D) any
banking moratorium declared by U.S. Federal or New York authorities; or
(E) any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities.
(iv) The Offered Securities shall have been qualified for sale
under the blue sky laws of such states as shall have been specified by
the Representatives.
(v) The legality and sufficiency of the authorization, issuance
and sale or transfer and sale of the Offered Securities hereunder, the
validity and form of the certificates representing the Offered
Securities, the execution and delivery of this Agreement, and all
corporate proceedings and other legal matters incident hereto and
thereto, and the form of the Registration Statement and the Prospectus
(except financial statements) shall have been approved by counsel for
the Underwriters exercising reasonable judgment.
(vi) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxx, Xxxxx & Xxxxx, counsel for the Company and the
Selling Stockholders, to the effect that:
(A) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification,
except where the failure to be so qualified or to be in good
standing would not have a material adverse effect on the
condition (financial or other), business or results of
operations of the Company and its subsidiaries taken as a
whole;
(B)An opinion to the same general effect as clause (A)
in respect of each subsidiary of the Company;
- 20 -
(C) All of the issued and outstanding capital stock of
each subsidiary of the Company has been duly authorized,
validly issued and, assuming receipt of the agreed
consideration therefor, is fully paid and nonassessable,
and, except as disclosed in the Registration Statement, the
Company owns directly or indirectly 100% of the outstanding
capital stock of each subsidiary, and to the knowledge of
such counsel, such stock is owned free and clear of any
claims, liens, encumbrances or security interests;
(D) The authorized capital stock of the Company, of
which there is outstanding the amount set forth in the
Registration Statement and Prospectus (except for subsequent
issuances, if any, pursuant to stock options or other rights
referred to in the Prospectus), conforms as to legal matters
in all material respects to the description thereof in the
Registration Statement and Prospectus;
(E) The certificates for the Offered Securities to be
delivered hereunder comply with the requirements of Delaware
General Corporations Law (the "DGCL"), and, with respect to
Offered Securities to be delivered by the Company, when duly
countersigned by the Company's transfer agent and when
delivered to you or upon your order against payment of the
agreed consideration therefor in accordance with the
provisions of this Agreement, the Offered Securities to be
delivered by the Company will be duly authorized and validly
issued, fully paid and nonassessable;
(F) The Offered Securities to be delivered by the
Selling Stockholders and all other outstanding shares of the
capital stock of the Company have been duly authorized and
validly issued, and assuming receipt of the agreed upon
consideration therefor, fully paid and nonassessable; and
the stockholders of the Company have no statutory or to the
best of such counsel's knowledge, other preemptive rights
with respect to the Securities;
(G) There are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be
owned by such person or to
- 21 -
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(H) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "INVESTMENT COMPANY" as defined
in the Investment Company Act of 1940;
(I) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required as of such Closing Date for the consummation of the
transactions contemplated by this Agreement in connection
with the sale of the Offered Securities, except such as have
been obtained and made under the Act, and such as may be
required under state securities laws (as to which such
counsel need express no opinion);
(J) This Agreement has been duly authorized, executed
and delivered by the Company;
(K) This Agreement constitutes the legal, valid and
binding agreements of the Company enforceable against the
Company in accordance with its terms, except as
enforceability of the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights and by the exercise of judicial
discretion in accordance with general principles applicable
to equitable and similar remedies and except as to those
provisions relating to indemnities and contribution for
liabilities arising under the Act as to which no opinion
need be expressed;
(L) The execution, delivery and performance of this
Agreement and the issuance and sale of the Offered
Securities will not result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, the DGCL, the federal laws of the United States and
any rules and regulations promulgated thereunder, the Act,
the Rules and Regulations or the rules and regulations of
the National Association of Securities
- 22 -
Dealers, Inc. or order of any governmental agency or body or any
court having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or instrument
to which the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject and
which is listed on Exhibit A to such opinion or could otherwise be
reasonably expected to have a material adverse effect on the
condition (financial or other), business or results of operations of
the Company and its subsidiaries taken as a whole, or the charter or
by-laws of the Company or any such subsidiary, and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement;
(M) The descriptions in the Registration Statement of laws,
regulations and rules, of legal and governmental proceedings and of
contracts, agreements, leases and other documents including, without
limitation, under the headings "Business - Government Regulation,"
"-Net Capital Requirements," "Management - 1996 Long Term Incentive
Plan," "-Profit Sharing Plan," "-Executive Bonus Plan," "-Employment
Agreements," "Certain Transactions," "Description of Capital Stock,"
"Delaware Anti-Takeover Law" and "Shares Eligible for Future Sale"
have been reviewed by such counsel and are accurate in all material
respects, and comply as to form in all material respects with the
applicable requirements of the Act and the Rules and Regulations;
[(N) To the best of such counsel's knowledge, all
offers and sales of the Company's capital stock prior to the
date hereof were at all relevant times exempt from the
registration requirements of the Act and were duly
registered or the subject of an available exemption from the
registration requirements of the applicable state securities
or blue sky laws;]
(O) After due inquiry, such counsel does not know of
any legal or governmental proceeding pending or threatened
to which the Company or any of its subsidiaries is a party
or to which any of their respective property is subject
which is required to be described in the Registration
Statement or the Prospectus and is
- 23 -
not so described, or of any contract or other document which is
required to be described in the Registration Statement or the
Prospectus or is required to be filed as an exhibit to the
Registration Statement which is not described or filed as required;
and
(P) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under
the Act, and each Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in
all material respects with the requirements of the Act and
the Rules and Regulations; such counsel shall also state
that no facts have come to the attention of such counsel
that would cause it to believe that a Registration Statement
or any amendment thereto, as of its effective date or as of
such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading; or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as
of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; it being understood that such counsel need
express no opinion as to the financial statements or other
financial data contained in the Registration Statements or
the Prospectus.
(vii) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxx Xxxx, counsel for the Selling Stockholders, to the
effect that:
- 24 -
(A) With respect to each Selling Stockholder, this
Agreement, the Custody Agreement and the Power of Attorney
has been duly authorized, executed and delivered by or on
behalf of such Selling Stockholder and the performance of
this Agreement, the Custody Agreement and the Power of
Attorney and the consummation of the transactions herein or
therein contemplated to be performed by such Selling
Stockholder will not result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, any statute, any indenture, mortgage, deed of trust,
note agreement or other agreement or instrument known to
such counsel to which such Selling Stockholder is a party or
by which such Selling Stockholder is bound or to which any
of the property of such Selling Stockholder is subject, or
any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction
over such Selling Stockholder or any of such Selling
Stockholder's properties;
(B) Each Selling Stockholder has full right, power and
authority to enter into this Agreement, the Custody
Agreement and the Power of Attorney; and
(C) This Agreement, the Custody Agreement and the Power
of Attorney is the legal, valid and binding agreement of
each Selling Stockholder party thereto enforceable against
such Selling Stockholder in accordance with its terms except
as enforceability of the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights and by the exercise of judicial
discretion in accordance with general principles applicable
to equitable and similar remedies and except with respect to
those provisions relating to indemnities for liabilities
arising under the Act, as to which no opinion need be
expressed.
(viii) The Representatives shall have received from XxXxxxxxx, Will &
Xxxxx, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholders and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
- 25 -
(ix) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice-President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter; and, subsequent
to the dates of the most recent financial statements in the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business or results of operations of the Company and
its subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or is described in such certificate.
(x) The Representatives shall have received a letter, dated such
Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (i) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(xi) On the First Closing Date a letter from each Selling
Stockholder, each holder of five percent (5%) or more of the Company's
outstanding Class A Stock and executive officer of the Company, in
which each such person agrees not to sell, contract to sell or
otherwise dispose of any Class A Common Stock or securities
convertible into Common Stock for a period of 180 days after the date
of such letter without the prior written consent of CSFB, except for
gifts and pledges of shares where the donees or pledgees, as the case
may be, agree in writing to be bound by the terms of such agreement
executed by such stockholder.
(xii) Such further information, certificates and documents as you may
reasonably request.
(xiii) A certificate of each Selling Stockholder dated such
Closing Date, as the case may be, to the effect that the
representations and warranties of such Selling Stockholder set forth
in Section 3 of this Agreement are true and correct as of such Closing
Date.
- 26 -
The Selling Stockholders and the Company will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and documents
as the Representatives reasonably requests. CSFB may in its sole discretion
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (i) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, that the Company will not be liable in any such case to the extent
that (A) any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (iii) below or such statement or
omission was contained or made in any preliminary prospectus and corrected in
the Prospectus and (1) any such loss, claim, damage or liability suffered or
incurred by any such Underwriter resulted from an action, claim or suit by any
person who purchased Securities which are the subject thereof from such
Underwriter in the offering and (2) such Underwriter failed to deliver or
provide a copy of the preliminary prospectus or Prospectus (as so amended or
supplemented) to such person at or prior to the confirmation of sale of such
Securities in any case where such delivery is required by the Act; provided that
delivery of such preliminary prospectus or Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
(ii) The Selling Stockholders, severally but not jointly, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged
- 27 -
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
that (A) the Selling Stockholders will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in subsection (iii)
below and (B) each Selling Stockholder (other than the Controlling Selling
Stockholders) shall be liable only for an amount not exceeding the proceeds
received by such Selling Stockholder from the sale of Securities hereunder.
(iii) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of (A) the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of
the cover page concerning the terms of the offering by the Underwriters, the
legend concerning over-allotments and stabilizing on the inside front cover
page and the concession and reallowance figures appearing in the _____
paragraph under the caption "Underwriting" and the information contained in
the ________ and ________ paragraphs under the caption "Underwriting".
(iv) Promptly after receipt by an indemnified party under this Section or
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (i),(ii) or (iii) above or Section 8, notify the indemnifying
party of the commencement thereof; but the omission so to
- 28 -
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under subsection (i), (ii)
or (iii) above or Section 8. In case any such action is brought against any
indemnified party, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to the indemnifying party, or the indemnified and indemnifying parties may
have conflicting interests which would make it inappropriate for the same
counsel to represent both of them, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defense and
otherwise to participate in the defense of such action on behalf of such
indemnified party or parties and; provided further that the Underwriters
shall only be reimbursed for the legal fees and expenses of one counsel
selected by CSFB. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 or Section 8, as the case may be, for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation unless (A) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defense in accordance with the proviso to the immediately
preceding sentence or (B) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject
matter of such action.
(v) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (i), (ii) or
(iii) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party is a result of the losses, claims, damages or
liabilities referred to in subsection (i), (ii) or (iii) above (A) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (B) if the allocation provided by
clause (A) above is not permitted by applicable law, in such proportion as
appropriate to reflect not only the relative benefits referred to in clause (A)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as
- 29 -
any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by
the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (v) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is the subject of this subsection (v). Notwithstanding the provisions of this
subsection (v), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (v) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(a) The obligations of the Company and the Selling Stockholders under this
Section and Section 8 shall be in addition to any liability which the Company
and any Selling Stockholder may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter or
the QIU (as hereinafter defined) within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability with the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. QUALIFIED INDEPENDENT UNDERWRITER. The Company hereby confirms that
at its request CSFB has without compensation acted as "QUALIFIED INDEPENDENT
UNDERWRITER" (in such capacity, the "QIU") within the meaning of Conduct Rule
2720 of the National Association of Securities Dealers, Inc. in connection with
the offering of the Offered Securities. The Company will indemnify and hold
harmless the QIU against any losses, claims, damages or liabilities, joint or
several, to which the QIU may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon the QIU's acting (or alleged failing to
act) as
- 30 -
such "qualified independent underwriter" and will reimburse the QIU for
any legal or other expenses reasonably incurred by the QIU in connection with
investigating or defending any such loss, claim, damage, liability or action
as such expenses are incurred.
9. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total number of shares of
Offered Securities that the Underwriters are obligated to purchase on such
Closing Date, CSFB may make arrangements satisfactory to the Company and the
Selling Stockholders for the purchase of such Offered Securities by other
persons, including any of the Underwriters, but if no such arrangements are
made by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to
purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase on such Closing Date. If any Underwriter or Underwriters
so default and the aggregate number of shares of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFB, the
Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except
as provided in Section 10 (provided that if such default occurs with respect
to Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased
prior to such termination). As used in this Agreement, the term
"UNDERWRITER" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
10. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of
the Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and
payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 9 or if for any reason the purchase of the Offered Securities by
the Underwriters is not consummated, the Company and the Selling Stockholders
shall remain responsible for the expenses to be paid or reimbursed by them
pursuant to Section 6 and the respective obligations of the Company and the
Underwriters and the obligations of the Company pursuant to Section 8 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and
- 31 -
warranties in Section 2 and all obligations under Section 6 shall also remain
in effect if the purchase of the Offered Securities by the Underwriters is
not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 9 or the occurrence of any event
specified in clause (B), (C), (D) or (E) of Section 6(iii), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
11. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company or the Selling
Stockholders, will be mailed, delivered or telegraphed and confirmed to it at
0000 Xxxxx 000xx Xxxxxx, Xxxxx, Xxxxxxxx 00000 Attention: Chief Executive
Officer; provided, however, that any notice to an Underwriter pursuant to
Section 7 or Section 8 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8, and no other
person will have any right or obligation hereunder.
13. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with this transaction, and any action under this
Agreement taken by the Representatives jointly or by CSFB will be binding upon
all the Underwriters.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal, state courts in the Borough of Manhattan in The City of New York in any
suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
- 32 -
If the foregoing is in accordance with the Representative's understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement among the Selling Stockholders, the
Company, and the several Underwriters in accordance with its terms.
Very truly yours,
AMERITRADE HOLDING CORPORATION
By:
-----------------------------------------
Its: Chairman and Chief Executive Officer
J. XXX XXXXXXXX
XXXXXXX X. XXXXXXXX
XXX X. and XXXX XXXX XXXXXXX,
as joint tenants
XXXXXX X. and XXXXXXXX XXXXX,
as joint tenants
XXXXXXX XXXXXXX
--------------------------------------------
------------------------, Attorney-in-Fact
- 33 -
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & ASSOCIATES, INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-------------------------------------
Its:
-------------------------------------
- 34 -
SCHEDULE A
Number of
Number of Optional
Firm Securities to be Securities to be
Selling Stockholder Sold Sold
------------------- ---------------------- ----------------
Total. . . . . . . .
------------- -----------
------------- -----------
------------- -----------
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SCHEDULE B
Number of
Firm
Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First
Boston Corporation
Xxxxxxx Xxxxx &
Associates, Inc.
Total. . . . . . . . . . . .
---------
---------
---------
- 36 -
